Tuesday, August 19, 2008

Sedition laws continue to be abused around the world to suppress critical voices. In the Gambia, it was today reported that a journalist was convicted of sedition and given a choice between a USD12K fine or four years imprisonment with hard labour. Over on the other side of the globe, in Malaysia, the rich and powerful continue to abuse sedition laws to suppress critical (and sometimes not only very harshly critical, but also prima facie defamatory) voices. The latest to join the current fray is Datuk Muhammad Shafee Abdullah, a successful lawyer, who has lodged proceedings against Malaysia Today editor Reja Patra (though he'll have to join the queue as Petra has many charges pending against him).

My problem with that: sedition laws are skewed in favour of the plaintiff and they allow for very harsh sanctions, as the Gambian case demonstrates. They are a hangover from the colonial era, when they were used to keep the locals down, and I believe they should be fought hard: the Gambian case should be brought before the ECOWAS court, and a constitutional challenge should be brought in Malaysia.

"25. The Committee is concerned that the State party's practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as "libel tourism." The advent of the internet and the international distribution of foreign media also creates the danger that a State party's unduly restrictive libel law will affect freedom of expression world-wide on matters of valid public interest. (art.19)

The State party should re-examine its technical doctrines of libel law, and consider the utility of a so-called "public figure" exception, requiring proof by the plaintiff of actual malice in order to go forward on actions concerning reporting on public officials and prominent public figures, as well as limiting the requirement that defendants reimburse a plaintiff's lawyers fees and costs regardless of scale, including Conditional Fee Agreements and so-called "Success Fees", especially insofar as these may have forced defendant publications to settle without airing valid defences. The ability to resolve cases through enhanced pleading requirements (e.g., requiring a plaintiff to make some preliminary showing of falsity and absence of ordinary journalistic standards) might also be considered."

The Committee also criticises national security and anti-terror legislation for their impact on freedom of expression:

"24. The Committee remains concerned that powers under the Official Secrets Act 1989 have been exercised to frustrate former employees of the Crown from bringing into the public domain issues of genuine public interest, and can be exercised to prevent the media from publishing such matters. It notes that disclosures of information are penalised even where they are not harmful to national security. (art.19)

The State party should ensure that its powers to protect information genuinely related to matters of national security are narrowly utilized and limited to instances where the release of such information would be harmful to national security.

...

26. The Committee notes with concern that the offence of “encouragement of terrorism” has been defined in section 1 of the Terrorism Act 2006 in broad and vague terms. In particular, a person can commit the offence even when he or she did not intend members of the public to be directly or indirectly encouraged by his or her statement to commit acts of terrorism, but where his or her statement was understood by some members of the public as encouragement to commit such acts. (art.19)

The State party should consider amending section 1 of the Terrorism Act 2006 dealing with “encouragement of terrorism” so that its application does not lead to a disproportionate interference with freedom of expression."

Friday, August 01, 2008

The Council of Europe's Steering Committee on the Media and new Communication Services has adopted a new set of guidelines "to assist Internet Service Providers in their practical understanding of, and compliance with, key human rights and fundamental freedoms in the Information Society, in particular with regard to Article 10 of the European Convention on Human Rights."

"4. Possible future mechanism for promoting respect of Article 10 of the European Convention on Human Rights: In response to the Committee of Minister´s request following the Parliamentary Assembly Recommendations 1783(2007) on threats to the lives and freedom of expression for journalists and 1791(2007) on the state of human rights and democracy in Europe, the CDMC pursued consideration of this subject on the basis of a Bureau report on the state of discussions. While recognising that problems exist as regards respect for Article 10 of the Convention in member states, a tour de table during which 30 CDMC delegations took the floor, showed a majority of 14 to 12 against the establishment of a new monitoring mechanism. The CDMC therefore decided to ask the Committee of Ministers for further instructions on the subject."

This is a real shame - it likely means that this innovative and needed idea is dead. The idea had been to establish a kind of a rapid response mechanism to function alongside the Court - not to usurp the role of the latter, but to be able to provide a speedy response and dispute settlement where needed.